Grayson L. Hare, Jr v. Shirley J. Simpson

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER and FINDINGS & RECOMMENDATIONS

Plaintiff initiated this diversity action for fraud, aiding and abetting fraud, intentional infliction of emotional distress, and civil conspiracy against various defendants on January 19, 2012 and is currently proceeding with his first amended complaint filed on May 15, 2012. (Dkt. No. 6.)

Presently pending before the court are defendant Shirley Simpson's motion to dismiss and motion to transfer venue, filed on November 30, 2012 (Dkt. No. 14), joined by defendants Pauline Gima, Donald Hare, and Gilbert Malone, as well as plaintiff's motion to strike, filed on December 20, 2012 (Dkt. No. 20). Plaintiff filed an opposition to defendants' motions to strike and transfer venue. (Dkt. No. 28.) Defendants filed an opposition to plaintiff's motion to strike (Dkt. No. 27), to which plaintiff filed a reply and an amended reply (Dkt. No.'s 30, 31). The motions were submitted on the record without oral argument. (Dkt. No. 29.) After considering the papers in support of and in opposition to the motions, the court's record in this matter, and the applicable law, the court FINDS AS FOLLOWS:

ALLEGATIONS IN THE FIRST AMENDED COMPLAINT Plaintiff alleges that defendants conspired to deprive plaintiff of his right to communicate with his father and his rightful inheritance of real and personal property in his father's estate ("the Hare estate"), which are all located in Maryland. Specifically, plaintiff's first amended complaint alleges that defendants committed fraud, aiding and abetting fraud, intentional infliction of emotional distress, and civil conspiracy. The relevant facts of this case, as set forth in plaintiff's amended complaint, are as follows. (Dkt. No. 6.)

Plaintiff, a California resident*fn1 , is the son of the now deceased Grayson Hare, Sr. (Grayson Sr.) and Etta Hare. Defendant Simpson is plaintiff's half-sister, through their mother Etta Hare. Defendant Donald Hare is plaintiff's uncle, through Grayson Sr. Defendant Malone is a Pennsylvania attorney that assists defendant Simpson with her business and personal legal matters. Defendant Gima is employed by Malone as a paralegal and notary public. Defendants are all residents of Maryland or Pennsylvania.

On February 13, 2006, Etta Hare had a stroke that left her partially paralyzed. After her mother's stroke, defendant Simpson allegedly located the Hares' checkbooks and left Grayson Sr. alone in his residence. On March 14, 2006, a local representative of the Adult Protective Services (APS) informed plaintiff and defendant Simpson that Grayson Sr. was suffering from dehydration and malnutrition. The APS representative contacted plaintiff seeking permission to send Grayson Sr. to the hospital, which plaintiff granted.

Defendant Simpson was at risk of losing her portion of the Hare estate if Etta Hare predeceased Grayson Sr. Shortly after Grayson Sr. was taken to the hospital, defendant Simpson "groomed" defendant Donald Hare by giving him personal property and money from the Hare estate in order to have him act as a witness and sign the deceased Hare's counterfeit will. Defendants Simpson and Donald Hare then concealed the existence of this will from plaintiff.

At some point in time, defendant Simpson instructed defendant Malone to produce fraudulent power of attorney forms giving her control of the Hare estate, with a cover letter back-dated to April 29, 2002. Defendant Gima assisted in producing these forms. Defendant Malone had a direct financial interest in producing these documents because defendant Simpson provided him with lucrative real estate and title business. Defendant Malone also received substantial sums of money from the proceeds of the Hares' residence for defending actions relating to the distribution of the Hare estate. Defendant Gima has a personal relationship with defendant Simpson that began over 20 years ago and also had a financial interest in assisting with the power of attorney forms.

Defendant Simpson used the fraudulent power of attorney forms to sell the Hares' residence in Maryland without either the Hares' or plaintiff's knowledge or consent. Defendant Simpson also admitted the Hares into a nursing home where she serves as treasurer and is personal friends with the director of the home. Defendant Simpson did not complete a written contract or give Grayson Sr. a copy of the Patient Bill of Rights. Subsequent to admitting the Hares into the nursing home, defendant Simpson transferred in excess of $400,000 from the Hares' bank accounts to accounts opened in the name of the nursing home, which defendant Simpson had authority to control.

After Etta Hare died on February 12, 2008, defendant Simpson wrote herself a check for $5,000 from the Hares' accounts without Grayson Sr.'s knowledge or consent. Grayson Sr. died on October 16, 2008, after which defendant Simpson wrote herself another check for $5,000 from the Hares' accounts.

MOTION TO STRIKE

The court may strike "from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). In his motion to strike, plaintiff argues that defendant Malone or his colleague are engaged in the unauthorized practice of law in California, that defendants committed procedural error in providing service of their motion to dismiss, and that exhibits attached to defendants' motion are inadmissible. (Dkt. No. 20.) However, a pleading is a complaint, answer to a complaint, answer to a counterclaim, answer to a cross-claim, a third-party complaint, an answer to a third-party complaint, or a reply to an answer. Fed. R. Civ. P. 7(a). Thus, a motion to strike is not the proper vehicle for striking a motion to dismiss. Regardless, plaintiff makes no argument as a basis to strike defendants' motion to dismiss or any portion thereof. Plaintiff's contentions will be addressed in turn.

I. Unauthorized Practice of Law in California

Plaintiff seeks to have the court strike defendants' motion to
dismiss because the
motion "was obviously prepared by [defendant] Malone, an attorney
licensed to practice in the State of Pennsylvania, but not licensed to
practice in California," in violation of Cal. Bus. & Prof. Code §
6125. (Dkt. No. 20, 2.) Alternatively, plaintiff claims that defendant
Malone's associate, Leo Wallace, also an attorney in Pennsylvania, may
have prepared defendants' motion to dismiss because Mr. Wallace sent
plaintiff a letter regarding a settlement agreement.*fn2
(Id. at 3-5.)

Defendants concede that defendant Malone prepared the motion to dismiss on his own behalf and that remaining co-defendants joined the motion. Dkt. No. 27, 2. "In all courts of the United States the parties may plead and conduct their own cases . . . personally as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." 28 U.S.C.A. § 1654. Defendant Malone's co-defendants, each proceeding in propria persona as well, signed the joint motion to dismiss. Dkt. No. 14, 1-2. The fact that defendant Malone is an attorney does ...

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